Case Number: BC597595 Hearing Date: July 20, 2016 Dept: 58

Hearing Date: Wednesday, July 20, 2016
Calendar No: 9
Case Name: Wasserman v. Coon, et al.
Case No.: BC597595
Motion: Demurrers and Motions to Strike
Moving Party: (1) Defendant Redband Investments V, LLC
(2) Defendants SRC Construction, Inc. and Sean Russell Coon
Responding Party: No oppositions filed

Tentative Ruling: Demurrers are overruled. Motions to strike are denied. Defendants Redband Investments V, LLC and SRC Construction, Inc. and Sean Russell Coon to answer within 15 days.
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Bankruptcy
The Court will inquire again about the status of the bankruptcy petition of defendant Marilyn Coon, notice of which was filed herein on February 26, 2016. The Court expects to inquire about the suitability of a stay herein only as to defendant Coon.

Prior Proceedings
On 10/16/15, Plaintiff Barbara Wasserman filed this action against Defendants Marilyn Coon, Kirk Dirickson, Justin Dirickson, Jacob Rodriguez, Nabih Youssef & Associates (“NYA”), Maya Termite Control, Inc., and LBR Associates, Inc. arising out of alleged defective construction on property located at 5001 Marmol Dr., Woodland Hills, CA 91364. On 12/14/15, Plaintiff filed a First Amended Complaint which added Sean Russell Coon, SRC Construction, Inc., and Redband Investments V LLC as defendants. Plaintiff alleges that Redband hired M. Coon, S. Coon, SRC, J. Rodriguez, and NYA to remodel and repair the property so that it could be sold but that the construction was defectively done. Plaintiff entered into a purchase contract with Redband (represented by LBR) on 9/23/13 where no significant defects were disclosed. Plaintiff hired K. Dirickson, J. Dirickson, and Maya to inspect the property which revealed no defects. Plaintiff discovered defects after escrow closed.

On 6/3/16, the Court granted Plaintiff leave to file a Second Amended Complaint to add claims against new defendants Michelle T. DeLisio and Pickford Real Estate, Inc. dba Berkshire Hathaway Home Services California Properties fka Prudential California Realty Pickford Realty (Plaintiff’s sales agent and broker). At the hearing on 6/3/16, the court granted Plaintiff’s request to file a Third Amended Complaint. Plaintiff filed the TAC on 6/24/16 which asserts causes of action for breach of contract, negligence, fraud, intentional infliction of emotional distress, rescission, and breach of fiduciary duty.

On 2/26/16, M. Coon filed notice of a bankruptcy stay, Case No. 25815. OSC re: bankruptcy and status conference and trial setting conference is set for 7/20/16. Trial is set for 2/6/17; FSC for 1/26/17.

Demurrers and Motions to Strike –
Redband, SRC, and S. Coon have filed demurrers and motions to strike which were directed at the FAC but the Court deemed them directed at the SAC and permitted supplemental papers to be filed. No supplemental papers have been filed, and Plaintiff failed to file oppositions to the motions. In light of the filing of the TAC and consistent with the Court’s 6/3/16 order, the Court treats the demurrers and motions to strike as directed at the TAC. Except as noted, the motions raise substantively identical issues.

1. Intentional Infliction of Emotional Distress & Fraud
Redband, SRC, and S. Coon argue that Plaintiff fails to allege extreme and outrageous conduct to support the claim for intentional infliction of emotional distress (see generally Hailey v. Cal. Physicians’ Service (2007) 158 Cal.App.4th 452, 474), or facts with particularity to support the fraud claims (see generally Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (requiring pleading facts which “show how, when, where, to whom, and by what means the representations were tendered)). The Court disagrees.

Plaintiff alleges that Redband hired SRC and S.Coon to remodel and repair the property which was completed by August 2013 (TAC ¶21), that SRC and S. Coon knew that this work was to facilitate Redband selling the property to an individual who would reside there (id. ¶ 22), that SRC and S. Coon had covered mold with new paint and carpet, concealed stress cracks by painting or sealing, and covered 100 sandbags against the up-slope at the rear of the property, and provided other deficient work (id. ¶ 27). Redband, SRC, and S. Coon executed disclosure statements on 10/4/13 representing that there were no significant defects and that the construction work was done according to code (id. ¶ 29, Exs. 2-3) Plaintiff purchased the property on 10/25/13 (id. ¶ 26). At the pleading stage, this is sufficient to allege extreme and outrageous conduct and fraud.

2. Rescission
Redband argues that Plaintiff fails to allege facts to support rescission, but Plaintiff’s fraud claim is sufficient (Civil Code §1689(b)(1)).

3. Negligence
SRS and S. Coon argues that Plaintiff fails to allege facts supporting a legal duty of care owed by them to Plaintiff. See, e.g., Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.
However, Plaintiff alleges that SRC and S. Coon knew that their construction services were being provided so that the property could be sold to an individual who would reside at the property (TAC ¶ 22). At the pleading stage, this is sufficient

4. Punitive Damages
Redband, SRC, and S. Coon argue that Plaintiff fails to alleged sufficient facts to support punitive damages. The Court finds that the fraud claims are sufficient to support the punitive damages allegations.

5. Attorney Fees
Redband argues that Plaintiff fails to attach the terms of the parties’ purchase agreement to support the claim for attorney fees, but the TAC has done this (TAC ¶ 23, Ex. 1).